Decision

Decision for Thomas John Howarth (OB2032927)

Published 13 January 2021

Decision of the Traffic Commissioner for the North East of England

In the matter of the Goods Vehicles (Licensing of Operators) Act 1995 (The Act)

Public Inquiry held at Leeds on 4 December 2020

1. History:

Howarth International Transport Ltd (OB1133502) held a Standard International Goods Vehicle Operator’s licence between 9 July 2015 and its revocation on 25 February 2020. The directors of the company had been Thomas John Howarth and his brother, Harry Howarth. The company was dissolved on 26 November 2019.

2. The application process and further developments:

The nature of the current application before me by Thomas John Howarth (OB2032927), a sole trader has changed during the application process.

That which began as an application for a Standard National Goods Vehicle Operator’s licence for 2 vehicles and 2 trailers (with Thomas John Howarth as its TM), on 12 May 2020, is now made as an application for a Restricted Goods Vehicle Operator’s licence for 1 vehicle only. The change was requested on 1 December 2020.

The applicant’s original proposal to utilise vehicles previously operated by Howarth International Transport Ltd to carry out general haulage work (READCTED).

The application for a Restricted licence is instead designed to enable Mr Howarth to carry on his own farming business, inherited from the estate of his deceased father, and thereby to move stock to and from market and to carry straw bales for his business. I was told by Mr Howarth that this business had hitherto been run within the activities of Howarth International Transport Ltd, not separately from it but that (REDACTED) had been made from carrying it on.

The application, as submitted drew attention since it did not disclose a previous sole trader licence held by Thomas John Howarth (OB0194479), nor the revocation of the company licence referred to above, although the latter licence was admitted to having been held.

Further, during the application process DVSA had undertaken an ANPR (Automatic Number Plate Recognition) check on the two vehicles to be nominated on the licence, which had revealed a total of 26 vehicle sightings on a number of days in the latter part of July 2020. Photographic images showed the trailers to be loaded on some of the trips. It was found neither of the vehicles were taxed for use on the road at the time.

A written explanation by the applicant dated 25 October 2020 described “oversight”, in dealing with the company’s failure and personal problems, as reasons for the vehicles being untaxed. As to the unlawful operation of them, this was explained as being use in relation to his farm business and an urgent need to avoid damage to “the straw before it got rained on”. At the Public Inquiry, I was told that Mr Howarth did not see the use as being carried out for hire or reward and that he “just didn’t think”. He accepted that there had been a strong desire to “get the job done and bear the consequences.”

Mr Howarth initially sought to withdraw his application altogether, but I refused to accept the withdrawal in the light of the admitted unlawful use and gave a provisional indication that I intended to refuse it, and therefore the Public Inquiry would remain listed, so that he might attend or make further representations. Mr Howarth gave notice he would attend.

My clerk subsequently made a further request through DVSA for the data previously provided through ANPR to be updated to cover for the 6-week period from 15 September to 30 October 2020. Once provided, (in amended form, as the witness had made errors as to dates in the first statement made), this revealed further extensive unlawful vehicle use:

• YK15 MXM on 10 occasions, over two days, namely, 9 and 23 October 2020; and
• DX64 KVR on 86 occasions, over eleven days, between 15 September and 27 October 2020.

Questioned at the Public Inquiry, it also transpired that this additional usage was also carried out without the benefit of vehicle excise duty being paid; Mr Howarth said neither vehicle had been freshly taxed before their eventual sale.

As to YX15 MXM, an invoice produced by him showed the vehicle was sold at auction on 20 October 2020, which explained the latter occasion but not the first one, which Mr Howarth could not recall, other than to speculate that he might have been hauling a trailer that was itself going to auction.

As to DX64 KVR, this was shown to have been sold at auction on 3 November 2020, after its collection on 27 October 2020; again, this explained one of the dates upon which it had been sighted but not those on 10 other dates from mid-September onwards.

In his final written representations presented after the close of the oral hearing, Mr Howarth accepted that it was “conceivable” there had been use of the latter vehicle by him for straw transport in both September and October up until the point of sale. He offered therein that a third party haulier had not been used to carry out the work, as very few of them had flat-bed trailers or possessed the experience or expertise to load and secure straw bales, as he had over 30 years.

3. Representations:

At the hearing Mr Howarth had been legally represented by Eliot Wills, solicitor. He had contended on the applicant’s behalf that there had been what he called “occasional” unlawful use of the vehicles but that the use should be seen in terms of loads being “time-sensitive” produce for animals and other necessary business. Further that no intention to obtain a competitive advantage had been behind those action, and that the case should be seen as being concerned with “honest mistakes”.

4. Consideration and findings:

The notices issued for the Public Inquiry, as adjusted as a result of the changed nature of the application by the date of the hearing, referred to the operator’s fitness and sufficiency of financial resources, as well as to his arrangements and facilities to keep vehicles fit and serviceable and to comply with the law.

Finances are adequate and the systems described to be operated in the event of grant were not of direct concern.

This was though a sole trader application and an onus is lay on him as an individual to satisfy me that he was “not unfit” to hold an operator’s licence. A weighing exercise was required to be carried out. On the positive side of the balance, I placed the expressed readiness to undertake RHA refresher training (indeed this was planned for 7 December 2020, which will have taken place by now). There was also a welcome offer to enter into undertakings concerned with regular roller brake testing and that this would be in a laden state. I accepted the applicant’s contention that his compliance history, over several years in the industry, as far as maintenance of vehicles was not a matter raised as of significance: this was to his credit. I have taken into account, so far as it is relevant, that the context for this consideration is the COVID-19 Pandemic, with all the pressures that has brought.

On the other side of the balance however, I find there was a blatant breach of the requirements in the period after the revocation of the company licence in February 2020. No application was made for over 2 months and then, during the application process which had begun in May 2020, there was unlawful use from July onwards which did not cease until the sale of the vehicles in late October 2020. I cannot characterise the use of the vehicles as being by “mistake”, nor can I accept that some competitive advantage was not gained. Further, the applicant’s very serious misjudgements were compounded by the vehicles’ use being untaxed, as well as unlicensed. I found somewhat disingenuous the explanation offered that the abolition of tax discs (6 years ago) had made it more difficult for the applicant. Equally, I am sceptical about the reasoning offered for him not using a third party supplier to carry the straw during the application process. I am inclined to believe the operator’s explanation at the hearing that in reality he took a chance, that he was “getting the job done” and that he knew that he might later need to “bear the consequences”.

The Upper Tribunal decision in the case of Aspey Trucks Ltd (2010/49) makes clear the role of the Traffic Commissioner as “the gatekeeper” to the haulage industry, when considering new applications. Those who are allowed entry must satisfy the Traffic Commissioner of their good repute or fitness. In answering that question whether I am so satisfied in respect of this application, I need to be awake to what the public, other operators, and customers and competitors alike would expect of those permitted to join the industry that they will not blemish or undermine its good name or abuse the privileges it bestows.

I find on the balance of probabilities that the requirement of fitness is not presently met. Having balanced the factors above, and even when taking into account that this application is much pared down from that originally sought, I remain to be satisfied that Thomas John Howarth has demonstrated current fitness. Vehicles have been operated for a long period unlawfully. The applicant has placed his business ahead of the needs for compliance. Whilst I am told that the unlawfulness has now ceased, I cannot conclude that enough has yet been done to persuade me that trust can be said to have been regained. It would not be proportionate to allow this application to succeed in current circumstances. Those who wait for their applications to be considered and who do not act in the fashion this operator has, should not be disadvantaged by their compliance.

I therefore refuse the application in accordance with sections 13B of the Act.

5. Note:

I do see this as a case where the applicant might in the future make a successful application for an operator’s licence. If, however there were to be any future application, I feel sure that a key consideration would be whether the applicant can show, in the period of time since these adverse events, compliance with the legal requirements (as a non-licence holder) and is able to evidence changed attitudes, which might justify a different outcome.

Simon Evans

Deputy Traffic Commissioner for the North East of England

30 December 2020